from the goodbye-first-sale,-goodbye-jobs? dept

As Techdirt reported a few months back, the Supreme Court Justices seem rightly concerned about the "parade of horribles" -- things that would happen if the decision in the Wiley v. Kirtsaeng copyright case over whether or not you have the right to resell a foreign-made product you bought were applied generally. In the oral arguments, the line of Wiley's lawyer was essentially: nothing bad will happen, because copyright holders would never dream of using the decision to make outrageous demands.

In response to a faculty request, we purchased a DVD of this film through an ordinary commercial channel. Going directly to a retail outlet in this case was the fastest way to fulfill the request, as librarians will surely understand. But somehow the film's producer found out that our library owned a copy of this film, and they have been asserting to us that we need to buy an additional license, at three times the retail price we paid for the DVD, in order to lend the film.

That's not the case, because first sale allows the library to lend out the DVD if it wishes. However, if the DVD had been manufactured abroad, and the Kirtsaeng decision applied, the library would not have been able to do that. The second story concerns physical books:

A donor to [a] library had given them some books, amongst which was a copy of a specialized textbook that is currently in use at the school. Subsequently, the library has been contacted by the publisher of the textbook who has told them that they are not permitted to place the copy of the book that they were given in their library.

Apparently, the fear was that students might make photocopies instead of buying the book. But again, the first sale doctrine means that the publisher has no power to demand the book be removed from the library in this way. And once more, if the Kirtsaeng ruling applied, and the book had been printed abroad, the publisher would have that extraordinary right to determine which of its books could be lent out - thus ripping the heart out of the present library system.

In fact, so great is the additional control that publishers would have over titles not printed in the US in this situation, that Smith suggests there is likely to be a rush to off-shore operations:

If the Supreme Court does hold that first sale applies only to copyrighted works made in the U.S., publishers will have a strong incentive to move their manufacturing operations off-shore. In making its ruling in Kirtsaeng the Second Circuit admitted as much. If a publisher has its books printed or its DVDs pressed in the U.S., it will be very difficult for it to implement truly tiered pricing [that is, to charge libraries extra for books or DVDs that will be lent out -- something publishers are keen to do.] But if it moves those operations overseas, it might be able to stop libraries from lending materials without a separate, expensive license. It might also be able to forbid libraries from lending certain books entirely, like textbooks. It might even be able to stop students from selling their textbooks second-hand to the next crop of students taking the course. The experiences libraries have had with e-books proves that these goals are important to publishers.

In other words, it won't just be the public and libraries that lose out massively if the first sale doctrine is not upheld for foreign goods involving copyright: it's quite likely that many US workers will suffer too, as a wide range of industries move manufacturing offshore in order to obtain even more control over how people use their products.

from the if-at-first,-you-cannot-sopa,-try-try-again dept

We've pointed out before that the short-term troubles of some legacy media players appears to have more to do with their own mistakes, rather than piracy. But they just keep on lobbying for more laws (none of which have actually worked). We've also pointed out that while defeating SOPA/PIPA was a good thing, the supporters of the bill, undoubtedly, were already hard at work trying to get similar efforts through elsewhere -- however possible. TorrentFreak has news of the IFPI submitting a list of proposals for search engines on how they should run their business -- which includes all sorts of extra efforts designed to help the entertainment industry by magically making it more difficult to find infringing content. I always find the hubris of such demands odd. It's really not proper for the entertainment industry to insist that search engines need to run their businesses in any particular way. In what other business does an entire industry demand a different industry protect them from having to adapt?

The recommendations & data themselves don't make much sense. The report claims that search engines send lots of traffic to infringing sites, but we've looked at the data pretty closely and there's no support for what they claim. The data showed that search engines definitely sent some traffic to infringing sites, but it was a very small percentage of their business. It's difficult to accidentally find infringing music to download these days. I realize that the industry claims otherwise, but the methodology there is suspect. They're claiming that if you search on the names of certain songs, unauthorized sites show up relatively high in Google searches. But there isn't evidence that that necessarily leads people to click on those infringing files. As the click-through evidence we saw showed, it's a relatively small percentage of people who do that.

While the industry has some good ideas for ways to improve business, blaming the tech industry (or insisting that all of their users act like criminals) has become an all too common refrain around here. It's counterproductive. The tech industry is providing all sorts of useful tools and services for the entertainment industry to thrive. I'm still at a loss as to how blaming the tech industry helps anyone. Punishing them just makes them less willing to design the next iTunes, the next Netflix or the next Spotify.

It's time for the industry to start focusing on real business model opportunities... not whining about everyone who it feels the need to punish.

from the oh-really? dept

It's always amusing to see what people feel they "deserve." Reader Brad writes in to point out that Aretha Franklin apparently told a radio reporter recently that she deserves royalties for any sales of the famous hat she wore to the inauguration. It's unclear if she was joking (one hopes she was)... But it does seem to be a common theme, where people suddenly think they automatically deserve a cut of something, despite not having set up an agreement for that beforehand. Newspapers want a cut of Google's revenues. Record labels want a cut of ISP revenue (and Apple's revenue). It just happens so often that it's worth calling out -- even in a totally ridiculous discussion about a hat. No one deserves a cut of anything if they didn't actually negotiate it beforehand.

from the fair-use-doesn't-work-that-way dept

Here's a follow up to our story last Friday about Progress Illinois having its YouTube account restored. The YouTube account had been taken down following multiple DMCA takedown notices from Fox, leading YouTube to institute its usual policy of shutting such accounts down. Progress Illinois sent a counternotice, and after Fox failed to sue the activist group, the account was turned back on. Paul Alan Levy points us to some more troubling details about the discussions between Progress Illinois and Fox. Apparently, Fox sought to have Progress Illinois waive its fair use rights on all future Fox materialand demanded that it be allowed to run ads on the Progress Illinois site in exchange for allowing the content to be placed on YouTube. On top of this, Levy notes that Fox is apparently preparing a deal with another video site (that will include its desired ads), which Fox will apparently demand sites use in reporting on Fox News reports. As Levy suggests, Fox may then use this to suggest that any "unauthorized" clip of a Fox broadcast fails the "impact on the market" prong of the fair use test. If true, that could create quite an interesting test case the first time Fox employs that argument on a site doing commentary. Its lawyers do know that failing one prong of the test doesn't automatically disqualify a fair use defense, right?